Citation Nr: 1309012 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-15 588 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to an effective date earlier than April 5, 2007, for the award of a 30 percent rating for posterior tibial tendon dysfunction with ongoing collapse, impingement and dysfunction of the posterior tibial tendon medially, claimed on the basis of clear and unmistakable error (CUE). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from September 1981 to June 2000. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO, inter alia, recharacterized the Veteran's service-connected right ankle sprain as a posterior tibial tendon dysfunction with ongoing collapse, impingement and dysfunction of the posterior tibial tendon medially and awarded a 30 percent rating, effective April 5, 2007. In September 2008, the Veteran filed a notice of disagreement (NOD) with the assigned effective date of the 30 percent rating. A statement of the case (SOC) was issued in February 2009 and the Veteran filed a substantive appeal (in a statement in lieu a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2009. In June 2012, the Veteran testified during a Board hearing at the RO and before the undersigned Veterans Law Judge. A hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. In a April 2002 rating decision, the RO granted the Veteran's claim for service connection for a right ankle sprain with degenerative joint disease and assigned an initial 10 percent rating. Although an April 2002 letter to the Veteran provided notice of the April 2002 decision, and of his appellate rights, the Veteran did not appeal the rating decision. 3. After the Veteran filed a claim for an increased rating for his right ankle sprain with degenerative joint disease on April 5, 2007, in a July 2008 rating decision, the RO recharacterized the disability as posterior tibial tendon dysfunction with ongoing collapse, impingement and dysfunction of the posterior tibial tendon medially, and awarded a 30 percent rating effective April 5, 2007 (the date of receipt of the Veteran's claim for an increased rating). 4 In his September 2008 NOD, the Veteran asserted his entitlement to an effective date earlier than April 5, 2007, for the award of the 30 percent rating for posterior tibial tendon dysfunction with ongoing collapse, impingement and dysfunction of the posterior tibial tendon medially; he later asserted CUE in "all rating decisions" in which the RO had characterized his disability as right ankle sprain with degenerative joint disease and failed to award the higher, 30 percent rating.. 4. The Veteran has not established, that the correct facts, as then known, were not before the RO at the time of the April 2002 rating decision, or that the RO incorrectly applied the applicable statutory and regulatory provisions existing at the time, and; that any error was "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome of the decision. 5. There was no pending claim, prior to April 5, 2007, pursuant to which the higher, 30 percent rating for disability recharacterized as posterior tibial tendon dysfunction with ongoing collapse, impingement and dysfunction of the posterior tibial tendon medially could have been granted. CONCLUSIONS OF LAW The claim for an effective date earlier than April 5, 2007, for the award of a 30 percent rating for posterior tibial tendon dysfunction with ongoing collapse, impingement and dysfunction of the posterior tibial tendon medially, claimed on the basis of CUE, is without legal merit. 38 U.S.C.A. §§ 5110, 7105(c) (West 2002); 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In the present appeal, the February 2009 SOC included citations to the provisions of 38 C.F.R. § 3.400 and a discussion of the legal authority governing effective dates for awards of compensation, as well as an explanation of the reasons for the denial of the Veteran's request for an earlier effective date. A July 2010 rating decision later provided an explanation of the reasons for the denial of the Veteran's allegation of CUE. The Board notes that although the Veteran has not been provided the specific citations to the provisions of 38 C.F.R. § 3.105 and 38 U.S.C.A. § 5109A involving claims of CUE, he has displayed actual knowledge of such provisions in his argument submitted to VA, including his August 2010 submission. Moreover, the Veteran has been afforded the opportunity to present evidence and argument with respect to the claim on appeal. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the Veteran. As will be explained below, the claim lacks legal merit. As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The Board also points out that, in this case, the sole basis for the claim for an earlier effective date is an allegation of CUE. However, given the parameters of the law surrounding CUE claims (as explained in more detail below), the duties to notify and assist imposed by the VCAA are not applicable where CUE is claimed, in Board decisions (see Livesay v. Principi, 15 Vet. App. 165 (2001), or in RO decisions (see Parker v. Principi, 15 Vet. App. 407 (2002)). As noted in Livesay, CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. A claim based on CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Livesay, 15 Vet. App. at 178-79. Moreover, that litigant has the burden of establishing such error on the basis of the evidence then of record. Id. II. Background In April 2001, the Veteran filed a claim for service connection for chronic pain/weakness of the right ankle. He was afforded a VA joint examination in December 2001, during which he reported sustaining an in-service right ankle sprain and that he had developed increased pain over the years. Following a physical examination and an X-ray, a diagnosis of right ankle sprain with degenerative joint disease was made. In April 2002, the RO granted the Veteran's claim for service connection for a right ankle sprain with degenerative joint disease and awarded a 10 percent rating, effective July 1, 2000, the day following the Veteran's discharge from service. On April 5, 2007, the Veteran filed a claim for an increased rating for his service-connected right ankle sprain with degenerative joint disease. The Board notes that there were no submissions received by the RO between the issuance of the April 2002 rating decision and the receipt of this April 2007 claim. In an August 2007 rating decision, the RO denied the Veteran's claim for an increased rating for a right ankle sprain. An April 2008 rating decision continued this denial. In a December 2007 statement, the Veteran's private orthopedist indicated that the Veteran had a significant right foot deformity that was predominantly a peritalar subluxation secondary to longstanding posterior tibial tendon dysfunction. In an April 2008 statement, the Veteran's private orthopedist indicated that the Veteran's original posterior tibial tendon injury had occurred during service and had led to increasing instability and deformity involving his right hindfoot, not his ankle. The provider opined that this diagnosis and resulting treatment plan had "nothing to do with an ankle sprain" but did "indicate a new diagnosis" that related to the Veteran's in-service injury. By rating decision dated in July 2008, the RO recharacterized the Veteran's service connected right ankle sprain with degenerative joint disease as posterior tibial tendon dysfunction with ongoing collapse, impingement and dysfunction of the posterior tibial tendon medially, and awarded a 30 percent rating, effective April 5, 2007. In September 2008, the Veteran requested that an effective date of July 1, 2000 be assigned for this 30 percent rating. A March 2009 statement from the Veteran indicated that he was alleging CUE in prior rating decisions. He asserted that his right ankle disability had been incorrectly characterized prior to July 2008, resulting in a lower rating than to which he was entitled since the effective date of service connection. In a March 2010 supplemental statement of the case (SSOC), the RO determined that the assigned effective date for the award of a 30 percent rating was correct, as it was the date that VA received his claim for an increased rating. In an April 2010 substantive appeal, the Veteran wrote that he had been found to have a weak posterior tibial tendon in his right foot with a possible partial posterior tibial tendon rupture in March 1996, during service. In an April 2010 statement, the Veteran's private orthopedist opined that the Veteran's longstanding posterior tibial tendon dysfunction had been incorrectly diagnosed by VA as a right ankle sprain with degenerative joint disease. During his June 2012 hearing, the Veteran testified that he was claiming CUE in all rating decisions which characterized his service-connected posterior tibial tendon dysfunction with ongoing collapse, impingement and dysfunction of the posterior tibial tendon medially as a right ankle sprain. II. Analysis Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final adjudication, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). The basic facts in this case are not in dispute. As noted above, the Veteran filed a claim for service connection for chronic pain/weakness of the right ankle on April 1, 2001. In an April 2002 rating decision, the RO awarded service-connected for a right ankle sprain with degenerative joint disease and assigned an initial 10 percent rating effective July 1, 2000 (the day after the Veteran was discharged from active duty service). Although the Veteran was notified of the RO's April 2002 decision and his appellate rights, he did not initiate a timely appeal with respect to any aspect of the decision. Hence, unless an exception to finality applies, the rating decision, and all its components, is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. The Veteran's sole argument in asserting CUE as the sole basis for his claim for an earlier effective date is that his right ankle disability had been incorrectly characterized, resulting in a lower rating than that to which he was entitled since the effective date of the award of service connection. In this case, the Veteran has alleged CUE in "prior rating decisions"; however, as his dispute is with the characterization of his disability as an ankle sprain with degenerative changes and the award of an initial 10 percent rating for the disability, the claim of CUE can really only be advanced with respect to the RO's April 2002 rating decision awarding service connection and compensation for the right ankle disability. Although, between the April 2002 award of service connection and the June 2008 rating decision on appeal, the RO issued an August 28, 2007 rating decision continuing the 10 percent rating for disability then characterized as right ankle sprain, the June 2008 rating decision effectively subsumed that rating decision in recharcterizing the disability and awarding the higher, 30 percent rating from the filing date of the April 2007 claim for increase. Although this claim for earlier effective date arose in the context of the Veteran expressing disagreement with the rating decision recharacterizing the disability and awarding an a 30 percent rating, the Veteran's assertion of CUE is an attempt to overcome the finality of the April 2002 rating decision outside of the appellate process. Cf. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006) (holding that a freestanding claim for an earlier effective date attempts to vitiate the rule of finality). As explained in Rudd, if a claimant desires an effective date earlier than that assigned in a RO decision, the claimant must perfect a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is on the basis of CUE. In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). CUE is a very specific and rare kind of "error." It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313-14. A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo, 6 Vet. App. at 44. The Board notes that a claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Although the Veteran has asserted his entitlement to an effective date back to date of the award of service connection addressed in the April 2002 rating decision, the Board finds that such argument is without legal merit. As noted in various written statements and his June 2012 hearing testimony, the Veteran has contended that he is entitled to an effective date of July 1, 2000 for the award a 30 percent rating for his service-connected posterior tibial tendon dysfunction with ongoing collapse, impingement and dysfunction of the posterior tibial tendon medially on the basis of CUE, in that this disability had been mischaracterized (in the April 2002 rating decision). In support, the Veteran has cited the April 2010 statement from his private orthopedist which suggests that this disability had been misdiagnosed in April 2002, and a March 1996 service treatment note which reflects an assessment of possible partial posterior tibial tendon rupture. The Board finds, however, that the record does not undebatably establish that any mischaracterization or misdiagnosis of the Veteran's disability in the April 2002 rating decision resulted in a lower rating than for which he was entitled. The December 2001 VA examination clearly culminated in a diagnosis of a right ankle sprain with degenerative joint disease, consistent with the mild degenerative changes along the dorsal margin of the midfoot revealed on contemporaneous X-ray. The April 2010 letter from the Veteran's private orthopedist finding that the Veteran's disability had been misdiagnosed in the April 2002 rating decision was received years after the issuance of this rating decision. In addition, the April 2008 letter from the Veteran's private orthopedist indicated that the Veteran's posterior tibial tendon dysfunction was a new diagnosis, although caused by his in-service injury. Moreover, the March 1996 service treatment record cited by the Veteran reflects only an assessment of possible partial posterior tibial tendon rupture rather than a definitive diagnosis. The Veteran's argument essentially represents disagreement as to how the facts were evaluated by the adjudicator in the April 2002 rating decision. The Board further notes that in asserting CUE, the Veteran has not articulated how any error in the diagnosis or characterization of his disability would have manifestly changed the outcome at the time the decision was made, such as changing the rating assigned. Even if, as alleged, the disability was misdiagnosed or mischaracterized at the time of the April 2002 award of service connection and assignment of initial compensation for his disability, he has not explained how and why his disability would have warranted a 30 percent rating for a severe foot injury. The December 2007 statement from his private orthopedist noted that the Veteran's disability had presented with ongoing degeneration, instability and deformity over the last 15 to 20 years. Moreover, the Veteran himself wrote that his disability had progressed, as he had a pronounced limp and was in constant pain, in his April 2007 claim for increase. Thus, the Board emphasizes that, even if the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. See Fugo, 6 Vet. App. At 43-44. Under these circumstances, the Board must conclude that Veteran has not established, without debate, that the correct facts, as they were then known, were not before the RO, or that the RO ignored or incorrectly applied the statutory and regulatory provisions applicable at the time of the April 2002 rating decision; nor has he demonstrated that any such error is the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made. As such, that decision remains final, and there is there is no pending claim, prior to April 5, 2007, pursuant to which the higher, 30 percent rating for disability recharacterized as posterior tibial tendon dysfunction with ongoing collapse, impingement and dysfunction of the posterior tibial tendon medially could have been granted. The Board further notes that the Veteran has not asserted, and the record does not reflect, evidence from which it was factually ascertainable that an increase in disability, sufficient to warrant assignment of a 30 percent rating for severe foot disability had occurred within the one-year period prior to the filing of the April 5, 2007 claim for increase. See 38 C.F.R. § 3.400(o)(2). The legal authority governing effective dates is clear and specific, and the Board is bound by such authority. On this record, the April 5, 2007 claim for increase represents the earliest date for which the 30 percent rating for disability recharacterized as posterior tibial tendon dysfunction with ongoing collapse, impingement and dysfunction of the posterior tibial tendon medially could have been assigned. Accordingly, the claim for an earlier effective must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date earlier than April 5, 2007, for the award of a 30 percent rating for posterior tibial tendon dysfunction with ongoing collapse, impingement and dysfunction of the posterior tibial tendon medially, claimed on the basis of CUE, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs